Friday, July 15, 2011

The Curious Case of William Winslow Crosskey, Part II

Posted by
Ken Kersch

Crosskey’s extensive – indeed, comprehensive – originalist inquiries in Politics and the Constitution (1953/1960) led him to destinations that were, for the most part, very different from those of contemporary conservative originalists. He concluded that the original understanding of Congress’s authority was that its powers were general: it had all the powers it needed to act for the general welfare, to advance the ends of the preamble. The enumeration of Congress’s powers in Article I, that is, were not limiting (Crosskey, in fact, dedicated Politics and the Constitution “to the Congress of the United States, In the Hope that it May Be Led to Claim and Exercise for the Common Good of the Country the Powers Justly Belonging To It Under the Constitution.”). We might dub this Crosskey’s ‘theory of the unitary legislature.’ The constitutional authority of the states was residual, and pertained only to matters that were purely local. So far as the separation of powers was concerned, Crosskey was a departmentalist. He believed that, as originally designed and understood, each branch of the national government (and Congress especially) was to be the ultimate judge of its own constitutional authority. One implication of this departmentalism was that Crosskey’s conception of judicial review was very limited: it applied clearly only to legislation affecting the prerogatives of the judicial branch. As noted above in my allusion to his debate with Charles Fairman, Crosskey argued that the Fourteenth Amendment was intended and understood as totally incorporating the Bill of Rights as protections against the actions of the state (pursuant to the privileges and immunities clause). Politics and the Constitution offered a raft of additional clause-specific readings as well.

Crosskey’s originalism was fervently nationalist. All of American history, he, in effect, argued, had been a (politicized) distortion wrought by Thomas Jefferson and James Madison, in favor of states rights and enumerated powers. Indeed, he alleged that Madison had doctored his notes from the constitutional convention as part of a deliberate plan to foist a fraudulent Jeffersonian constitutionalism upon an unsuspecting nation. From early on, the judiciary had been complicit in foisting false constitutional understandings on the country, betraying the original understandings of the nation’s founders. It was time to reclaim the country from this cynical politics, and restore it to its true foundations in constitutional law.

As I noted in my first post on Crosskey, my posting about this was inspired by Mary Bilder’s question to me about why people hated Crosskey so much, and why he (ostensibly) has had so little subsequent influence on constitutional scholarship, despite his high academic perch, and his clear prefiguring of an originalist approach that subsequently became highly influential. As I type this it seems to me that the answer to Mary’s question might be over-determined: there are so many reasons for so many people to react against Crosskey’s various theses that it might be hard to settle on any one overriding cause.

What I’ll do here – as an amateur, with no particular expertise in Crosskey’s work itself – to riff a bit on this scholarly (non?) trajectory.

(Counter-) Theory One: Crosskey actually has been influential!

Didn’t Robert Bork get both his undergraduate and law degrees at the University of Chicago when Crosskey was teaching constitutional law there? I have no knowledge on this point, but isn’t it possible that he was highly influenced by Crosskey while there – on the method, at least, if not on Crosskey’s substantive conclusions? I don’t think that one needs Crosskey to arrive at originalist type arguments about constitutional meaning. But when I said in my first post that Crosskey was an originalist in the Bork/Meese sense, I meant that he went beyond this to a unified theory of constitutional meaning, positing right and wrong answers to all constitutional questions, discoverable by historical inquiring into the Founding – importantly accompanied by the belligerent accusation that all other approaches amounted to betrayals and corruptions of the Constitution, wrought by an opposing camp systematically committed to reducing a tradition of law to the ash-heap of pure politics (Politics and the Constitution is loaded with accusations of sophistry, dishonesty, “sheer bluff,” “prestigitation,” tricks, fantasy, mendacity, brazenness, and so forth). True, current originalists – in the legal academy, at least – have become house-broken (this is decidedly not the case with the “popular constitutionalist” version of originalism that is alive and well in the broader conservative movement). Put otherwise, the spirit – and the emotional temperature – of Bork’s originalism and Crosskey’s originalism seem very much akin.

There’s another way that Crosskey might have actually had legs, and that is if one looks to the trajectory of his defense of Black, and his debate with Fairman on incorporation. Though contemporary conservative originalists focus almost entirely on the eighteenth century, it seems to me that, in its post-war incarnation, originalism as a method was pioneered most extensively in debate over the original intention and understanding of the Fourteenth Amendment; that is, the focus was resolutely in the mid-nineteenth century. If we put Black and Crosskey on one side as liberal originalists, versus Fairman and Raoul Berger on the other (ex-liberal (?) originalists, or originalists who became touchstones for conservatives), we begin to see the development of the originalist v. originalist dynamic for the first time in post-war constitutional discourse, a sure sign of intellectual influence realized (see, e.g., today, liberal originalists like Akhil Amar and Jack Balkin). Of course, on the right, the publication of Raoul Berger’s Government by Judiciary (1977) was of immense significance to the contemporary constitutional right, and contemporary originalism. We might be able to see Berger’s book as one of the eventual fruits of the Crosskey-Fairman debates.

Again, just riffing here. This post is already too long. I will also riff on the contrary thesis – that Crosskey’s influence has been minimal (and speculate as to why) – in my next post.

2 comments:

Anonymous
said...

I can answer your musings re Cosskey and Bork (and this story comes straight from the horse's mouth).

Bork actually had Crosskey for Constitutional law. But, he never went to class. Unfortunately for RB, as is the case with many law school professors, for the exam, Crosskey expected students to use, or at least display knowledge of, his theory of interpretation. Bork was utterly oblivious to anything Crosskey had said or taught and received a *very* low grade.*

Thus, at least as a student, RB did not absorb much from Crosskey.

*And, should anyone be thinking this, let's just dispense with any notion that RB -- the preeminent scholar in two separate fields of law -- was somehow an idiot or a poor student.